A COFA for Puerto Rico?

Posted March 29, 2017

When Puerto Rico votes on June 11th to end its status as a United States territory, one of the options on the ballot will be nationhood with two variations: independence or free association. This is how the current draft ballot, which is awaiting approval from the U.S. Department of Justice, defines Free Association:

Free Association: Puerto Rico should adopt a status outside of the Territory Clause of the Constitution of the United States that recognizes the sovereignty of the People of Puerto Rico. The Free Association would be based on a free and voluntary political association, the specific terms of which shall be agreed upon between the United States and Puerto Rico as sovereign nations. Such agreement would provide the scope of the jurisdictional powers that the People of Puerto Rico agree to confer to the United States and retain all other jurisdictional powers and authorities. Under this option the American citizenship would be subject to negotiation with the United States Government.

In an effort to understand what Free Association would look like, we can examine the Republic of the Marshall Islands (RMI), a nation which has had a Compact of Free Association (COFA) with the United States since 1986. The amended COFA signed in 2003 is the legal document technically in force governing the relationship between the two countries. It specifies some new environmental protections and changes the immigration rules. It also reiterates the ability of either side of the compact to terminate the COFA without the agreement of the other side.

Not only can the agreement between the two countries be changed at any time without warning, but the COFA is meaningless if Congress does not enact legislation to enact its terms and any needed reforms and resources, including the appropriation of funding. A 2016 study by the General Accounting Office found that the Marshall Islands face challenges to achieving the compact goals of economic growth and self-sufficiency, but Congress has not responded. GAO previously found that compact implementation has been characterized by unreliable performance data and by accountability and oversight challenges.

The COFA for the Marshall Islands gives the U.S. access to land for military purposes while providing token federal financial support for the Marshall Islands. In 2016, the Marshall Islands received $823,475 from the U.S. government, about $15.54 per person. The per capita GDP is $8,600.

The COFA offers one other big thing: residents of the Marshall Islands can travel to the U.S. without a visa, and can live and work in any state indefinitely. About one third of the population of the Marshall Islands has chosen to move to the United States, with more than 10,000 living in Northwest Arkansas, the largest concentration, and many more living in Hawaii and Oregon. However, with changes since the initial agreement, Marshallese visitors to the U.S. can also be deported or refused entry, just like foreign nationals with Permanent Resident status (green cards).

A Mother Jones article on people moving to Hawaii from the Marshall Islands reports that people from the Marshall Islands can live and work in Hawaii (or any other state) without a visa, and that they pay state and federal taxes as all residents of the U.S. do. However, since they are not U.S. citizens, they cannot receive federal assistance. And of course they cannot vote.

“In the current political climate,” the article says, “the chances of… Congress appropriating funds for a virtually unknown migrant group with no political voice is effectively zero. The result is a peculiar imbalance: Legal immigrants from most foreign countries gain access to federal benefits such as Medicaid after five years in the United States, but migrants from the COFA countries, who enjoy the unique privilege of unfettered residency in America, do not.”

Yet new immigration law drafts nonetheless make it clear that the current administration is prepared to deport residents from the Marshall Islands who are “a public charge” — that is, any who are being supported by public assistance.

While many Marshall Islanders move to the U.S. in search of jobs, others come seeking health care, which is limited on the island.

Health care is a particularly important issue for the Marshallese, who have among the highest rates of Type II diabetes in the world, with as many as half of all adults suffering from the chronic disease. The history of U.S. nuclear testing in the Marshall Islands has also resulted in high incidences of birth defects and weakened immune systems as well as high rates of thyroid, cervical, and breast cancer.

A need for health care is one of the main reasons people from the Marshall Islands move to the mainland U.S. Since they are not citizens, they are not eligible for Medicaid or other federal healthcare support, but can gain insurance either through employer programs or the Affordable Care Act marketplaces.

If Puerto Ricans choose to negotiate a COFA of their own, their access to U.S. citizenship will be placed in jeopardy and federal financial support would drop dramatically. And, while living in the States may continue to be an option, citizens of Puerto Rico can expect to be ineligible for federal programs while living on the mainland.

There is no way of knowing before the vote what kind of COFA the new nation of Puerto Rico might be able to negotiate. However, it makes sense to look at the experience of the Marshall Islands with their COFA, and the lack of success Puerto Rico has had in negotiating an “enhanced commonwealth.” These historical facts provide some real-world data to balance the hopes of those who make optimistic predictions about a powerful Puerto Rico under Free Association.